WASHINGTON, May 29, 2012 – Employment drug testing laws affect job applicants, those employed, and employers. You should be familiar with drug testing laws to assure your rights are protected and to avoid liability.
Pre-employment drug testing is a common condition for a job offer. Is it always legal? Once an employee is hired, when is it legal for an employer to ask for a drug test as a condition of continued employment?
The attendant conflicting legal issues here are very clear. First, privacy issues are abundant for those to be tested. Applicants and employees may well have claims when employers fail to implement drug testing in a manner that assures personal or constitutional rights, such as privacy rights or protections against unlawful searches and seizures.
The flip side understandably finds employers with a legitimate basis for concern about decreased productivity, increased liability exposure, and higher Worker’s Compensation insurance premiums. Employers also have a substantial interest in providing a drug-free workplace for the safety and welfare of employees and patrons. Aside from the legal issues, drug testing serves as a hedge against increasing costs. Employee drug and alcohol abuse costs employers billions of dollars each year.
Further, small business owners could be at risk for negligence lawsuits from customers and employees. For example, if an employee high on drugs accidentally injures a co-worker or customer, the business could be sued. The plaintiff might appropriately ask why the employer failed to drug-test.
Where did all of this begin, and what is the law now?
Workplace drug testing began in 1986, when former President Reagan signed an Executive Order prohibiting federal employees from using illegal drugs, on or off-duty. In 1988 Congress followed with the Drug-Free Workplace Act. Guidelines were developed and apply to executive agencies of the federal government and the military (with some exceptions), and to contractors of the federal government.
The 1988 Act only applies to federal employees. Many state and local governments adopted similar laws and drug-free workplace programs. While drug testing is allowed in most states, it is not always mandated. Many states require drug testing for jobs in the medical and health related fields, jobs requiring the use of machinery or vehicles, security positions, food handling jobs, or physically demanding jobs.
Applicants, legally, have a lesser expectation of privacy than current employees, thus employers enjoy more freedom to test applicants, without the same concerns that would exist when testing employees. There is no requirement to notify an applicant in advance of a drug test. The applicant thus is free to refuse. Refusal, of course, may be grounds to terminate the application process.
In order to test job applicants, employers may be required to first offer employment. If the business employs 15 or more people, it must conform to the Americans With Disabilities Act, which requires the employer to first make a conditional offer of employment.
Locally, Virginia prohibits employers from making job applicants pay for the testing.
Maryland drug testing laws allow for the use of a specimen of your hair for pre-employment purposes only. The hair sample cannot be used for purposes other than for testing for the presence of controlled dangerous substances.
The U.S. Constitution does not prohibit employee drug testing. However, the Supreme Court, in a 1989 case, held that requiring employees to produce urine samples was a “search” within the meaning of the Fourth Amendment, and therefore, such testing must meet the Amendment’s “reasonableness” requirement.
A major constitutional issue in employee drug testing involves the Fifth Amendment, which prohibits the denial of life, liberty, or property without “due process of law.” If an applicant is not given a job, or if an employee is fired based on drug test results, due process considerations might be invoked, such as the validity of the test results, the individual’s right to respond, or the concerns about required notices to the applicant or employee.
Further, as most of us know, we have a fundamental right to privacy concerning our person and our property. Drug testing may be subject to constitutional challenge if the results are divulged inappropriately or if testing is unnecessarily or excessively imposed.
State laws often limit when an employer can conduct drug testing of current employees. Generally, testing is allowed in situations where safety is an issue, or when an employer suspects an employee of illegal drug use. In all cases, an employer should have a written drug-testing policy.
In Maryland, employers may test their employees for drugs and alcohol for any “legitimate business purpose.” Maryland has specific procedural requirements ahas the law sets out employee rights in cases where positive results may be used for discipline.
Virginia has no express laws governing employment drug testing.
Here are three common situations where drug testing at work is generally legal:
1. The job poses safety risks.
Workers in certain professions, such as airline pilots or commercial truck drivers, can be required to submit to random drug testing during employment.
Further, jobs with inherent safety risks, such as operating heavy machinery, may also trigger random or periodic drug testing, as specified in a written policy.
2. An employer has a “reasonable suspicion” that an employee is using illegal drugs.
Reasonable suspicion can include physical evidence, such as, obviously, drugs in an employee’s locker, or even an employee’s behavior, such as slurred speech or lapses in work performance. Drug tests at work based on “reasonable suspicion” are generally upheld when an employer’s suspicion is legitimate, and the testing follows an employer’s established written policy.
3. After an employee accident, or an employee’s participation in a drug rehabilitation program.
Post-accident drug testing will be allowed if an employer had legitimate reason to believe that drug use was involved in the employee’s accident.
Guide for Employers.
A good idea for employers who want to implement or keep drug testing at work is to have a written policy that their employees sign-off on, acknowledging understanding.
Drug-free work place programs include the following:
1. Both employees and applicants may be tested.
2. Tests may be conducted “upon reasonable suspicion” or “for cause,” at random, routinely, and/or post treatment or rehabilitation. Random testing where there is no suspicion nor any “cause” and may include unannounced, and/or non-routine testing that may be indiscriminately applied to some, but not to all, employees. State laws may limit or prohibit random “no cause” testing unless the job involves “safety sensitive” positions.
If you are thinking about random “no cause” drug-testing your employees, here are a few legal considerations.
1. If you test one employee, you should probably test all. You do not need discrimination claims made against you. If you test only employees you suspect of using drugs—someone might construe this as singling out certain people based on income level, race, gender or other protected status.
2. Test honestly. Do not, under any circumstances, try to get a specimen sample from an employee without his or her consent. This is absoultey illegal. Example: using a stray hair from the employee’s desk to send to a lab.
If you are applying for a job, or you have a job, and you are confronted with a request for drug testing, you have a choice, always. Your refusal to take the test may eliminate a future with that employment, or it may provide the basis for a legal claim. Either way, if you are doing illegal drugs, you should stop.
For employers, clearly, it is difficult to run a business, much less a successful and profitable one. Understanding and complying with the list of federal, state and local laws, and with regulations and ordinances can be daunting. To be sure, understanding and complying with drug testing laws and practices should be among the top of the list.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.
His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.
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